‘Any investigation should include looking into extraordinary rendition and proxy detention sites overseen by the CIA, and continuing crimes at Guantánamo.’
Photograph: Alamy Stock Photo

As dignitaries and civil society gather in The Hague this week to mark the 20th anniversary of the establishment of the International Criminal Court (ICC), the Court stands poised to demonstrate its maturity as it weighs a request to investigate members of the US Central Intelligence Agency and the US armed forces for torture and other serious crimes committed in Afghanistan or in Eastern Europe in the so-called “war on terror.”

A criminal investigation of US torture – and other serious crimes in Afghanistan – is long overdue.

In November, the ICC prosecutor, Fatou Bensouda, lodged a request to open a formal investigation following a decade-long preliminary investigation into possible international crimes committed in Afghanistan since it became a member of the court in May 2003, as well as to related crimes in other member states since July 2002.

Prosecutor seeks to investigate Afghan war crimes allegations – and claims of US torture

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It also follows longstanding efforts by the Center for Constitutional Rights (CCR) to hold high-level Bush administration officials accountable, through the principle of universal jurisdiction, for many of the human rights violations that the imminent ICC prosecution would encompass.

We’ve pursued former US officials in Canada and around Europe, seeking to hold them accountable for torture at Guantánamo, Afghanistan, and secret “black sites” around the globe.

To date, no high-level US official from the civilian leadership, military, CIA, or private contractor has been prosecuted for war crimes and crimes against humanity. An ICC investigation could finally change that – bringing an end to the impunity US officials have enjoyed and, critically, some measure of redress to victims of the US torture program.

The ICC Pre-Trial Chamber is now considering whether the proposed investigation – which would cover international crimes allegedly committed by the Taliban and affiliated armed groups, Afghan authorities, and members of the US military forces and the CIA – will go forward.

The investigation would cover not only serious crimes in the context of the armed conflict in Afghanistan but also crimes committed on the territory of other countries that are a member of the ICC where the crimes have a nexus to those committed in Afghanistan, such as Romania, Poland and Lithuania – all known to have hosted CIA black sites.

The prosecutor laid out the case for investigating torture, cruel treatment, rape and other forms of sexual violence, and persecution on the basis of gender, among other crimes. The ICC is able to conduct an investigation that could lead to the prosecution of high-level former US officials, despite the United States not being a state party to the court because the court has jurisdiction over all international crimes committed on the territory of a state party regardless of the nationality of the perpetrators.

An investigation will show that those who bear responsibility for international crimes will be held accountable

The ICC is unique among international criminal tribunals in that victims have an opportunity to participate in all stages of the proceedings, separate and apart from any role they might play as witnesses for the prosecution. In the short time-frame given to victims, thousands of victims presented their views on the proposed investigation – with most coming from Afghanistan, at a time when near-daily bombings targeting civilians continue – and almost all urged the Pre-Trial Chamber to authorize the investigation.

To that end, the Center for Constitutional Rights submitted “victim’s representations” on behalf of two of our clients, Sharqawi Al Hajj and Guled Hassan Duran, emphasizing the importance of an ICC investigation of US officials for serious crimes arising out of post-9/11 detention and interrogations, detailing Al Hajj and Duran’s experiences and expanding upon the potential scope of the ICC inquiry.

Both Al Hajj and Duran have been imprisoned at Guantánamo Bay for over a decade. Before arriving there, both were detained by the CIA in black sites or “proxy-detention” by other countries, tormented, and tortured. Drawing from publicly available information, CCR has detailed their cases and urged that any investigation include looking into extraordinary rendition and proxy detention sites overseen by the CIA, and continuing crimes at Guantánamo.

We have argued that the prosecutor should investigate crimes against humanity, ie, a widespread or systematic attack against a civilian population, as well as war crimes by US officials. In pressing for such an investigation CCR is asking the ICC to reject the “war on terror” paradigm advanced by the US to justify not only its detention and interrogation program but also its global campaign of so-called “targeted killings” and drone attacks in the wake of September 11.

CCR also set out for the ICC why it should focus its investigation on senior leadership of the Bush administration, including George Bush, Dick Cheney, and former CIA Director George Tenet, as well as private contractors who played a key role in developing the CIA torture program.

Overall, Al Hajj and Duran’s victim’s representations make the case for a thorough investigation that brings an end to impunity for over a decade of international human rights violations related to the war in Afghanistan.

The ICC is deemed a court of last resort, the place to go when other courts in other countries have proved unable or unwilling to prosecute. The responsibility of US parties for crimes related to the war in Afghanistan, for which impunity has reigned for nearly 15 years, is exactly the sort of case the ICC was designed to take on.

An investigation will make clear that all victims of serious crimes have recourse to an independent and impartial process for having their claims heard. It will show that those who bear the greatest responsibility for serious international crimes will be held accountable. In short, it will demonstrate that no one is above the law.